Does the hon. and learned Gentleman agree that if we are to solve these problems, we must make it clear, in statute and in the minds of the police, that there is no right not to be offended? We need to get rid of the idea of insult, especially unintentional insultas in section 5 of the Public Order Act 1986from our statute book, and also to ensure that guidance throughout makes it clear to the police that they cannot take seriously complaints of insult which is not direct abuse. Does the hon. and learned Gentleman agree with that?

Mr. Grieve:
Yes. I apologise to the hon. Gentleman for the fact that, in the time allowed, I have not dealt with that point.

The question of insulting behaviour raises an important issue. I am not sure that I can do full justice to it in this short debate, but if the hon. Gentleman wishes to revisit it, I shall be happy to discuss it carefully with him. I can see that there may well be merit in getting rid of an expression that, I think, carries a number of connotations in wider legislation and that may be undesirable. There is, however, an issue that I think we cannot completely avoid. In some cases, insult, particularly if it takes place in a public arena, can reach a point at which it becomes incitement to a breach of the peace. We must guard against that possibility, but subject to that, I am sympathetic to what the hon. Gentleman has said.

For the present, we have quite a simple issue to deal with. We have a piece of legislation, passed on to the statute book last summer, that has not yet been brought into operation and that has not yet been given the chance to see whether it works. I do not see anything in Lord Waddingtons amendment to justify its deletion at present. Its support goes much wider than people with a religious viewpoint. It extends across a wide spectrum of those who have deep anxieties about the erosion of freedom of speech, including within the theatrical world, as has been shown by Rowan Atkinson.

For those reasons, although I am mindful of the mischief that we are trying to address and I want the incitement of hatred on the grounds of sexual orientation to be prohibited, I believe the amendment does nothing to prevent that from happening that and does a great deal to ensure that the legislation that we pass is balanced. For those reasons, I support the amendment.

The Parliamentary Under-Secretary of State for Justice (Bridget Prentice):
The hon. and learned Member for Beaconsfield (Mr. Grieve) and the hon. Member for Oxford, West and Abingdon (Dr. Harris) are right: Stonewalls example in the briefing is wrong about what would be caught by this part of the law.

Amendment 1 deals with freedom of speech, but it is important that we remember that we are also talking about the freedom of gay people to live their lives free from hatred and bigotry. When we debated the offence of stirring up hatred on the basis of sexual orientation last year, we had a long discussion about freedom of expression and were rightly concerned about getting the balance right.

We need to protect groups that are the target of threatening behaviour intended to stir up hatred. We must also ensure that those who have concerns about some types of sexual behaviour are free to express their 24 Mar 2009 : Column 200
arguments and concerns in a reasonable way. They do not need to fear that they will be caught by the criminal law. Last year, we had a very lively debate and the Government took the view that no additional provision was needed to ensure freedom of expression. The offence that we are talking about has a very high threshold and a number of safeguards are built into the system to ensure that the offence cannot be used in any way that disrupts the balance between those two concerns.

The Joint Committee on Human Rights, in its report published last week, reaffirmed its view that we have the balance right, as did the Equality and Human Rights Commission at about the same time. Last May, this House agreed, by a very large majority, that we had got the balance right. However, as the hon. Member for Oxfordthe hon. Member for Cambridge (David Howarth) rather; I must get my university towns in the right orderpointed out, the other place inserted a measure for the avoidance of doubt. We all agreed with the principle that the offence should not be misused. As I say, those safeguards have already been built into the offence. The additional provision was and still is unnecessary. It serves only to make the offence less clear; it muddies the waters. This House rejected the amendment and I ask it to do so again today.

In last years debates, the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), said that we would return to the issue, so it should come as no surprise to any hon. Member, including those who have put their names to amendment 1, that we are now seeking to repeal the so-called freedom of speech saving provision.

John Bercow (Buckingham) (Con):
Does the Minister recall the comment made by the distinguished lawyer, Lord Thomas of Gresford:

Freedom of speech is not derived by clauses inserted into every statute for the avoidance of doubt.[ Official Report, House of Lords, 21 April 2008; Vol. 700, c. 1373.]

There may be doubt in Lord Waddingtons mind, but I do not think that there is doubt more widely. The measure was carried, on a pathetic turnout, by 81 votes to 57, and it is time we got rid of it.

Bridget Prentice:
The hon. Gentleman, as always, puts the argument so eloquently that I simply endorse what he says.

It was again evident from the debate that there are strong and divided views about where the correct balance lies. I remind the House, however, that the offence covers only behaviour that is threatening and is intended to stir up hatred. I think all Members will agree that that type of behaviour cannot be acceptable under any circumstances. It should not be protected by freedom of speech, and any provision that implies otherwise should not be on the statute book. That is why I invite the House to reject amendment 1.

David Taylor:
Does my hon. Friend agreeI assume she does, as she will have signed off the information given by the Government at the time of this debatethat if the removal of the free speech clause will not affect the threshold of the offence, logically its retention cannot affect the threshold of the offence either, and that the 24 Mar 2009 : Column 201
clause is being used not as a defence but as a signpost to help police and prosecutors deal with allegations more speedily and effectively?

Bridget Prentice:
I will come on to the guidance in a moment, but let me just point out a key difference to my hon. Friend. Last May, this House voted on and rejected by a majority of 202 a Lords amendment inserting a saving into the sexual orientation offence. By contrast, in January 2006 we accepted, by only one vote, a Lords amendment inserting a freedom of speech saving into the Racial and Religious Hatred Bill. The saving for the religious hatred offence is the settled will of the House, whereas the saving for the sexual orientation offence is not the will of the House, which is what I ask Members to endorse today.

Mr. Tom Harris (Glasgow, South) (Lab):
It seems to be very curious logic to say that because the House voted one way at some point in the past, that somehow binds the House today to vote in exactly the same way. Could not Members change their mind at some point?

Bridget Prentice:
Of course the House can change its mind, and we will discover in the Lobby in 20 minutes or so whether the House has changed its mind, but I think that the fact that this was introduced last year for an offence that has not yet been put on the statute book is a pretty persuasive argument for believing that that was the Houses view at that time.

We had long debates about the guidance and about what guidance should be issued. There is a clear need for guidance, as there always is when any new offence is introduced. The Ministry of Justice will provide short explanatory guidance about the offence. The Crown Prosecution Service will issue guidance for prosecutors, and the Association of Chief Police Officers will revise its hate crime manual to include guidance on all incitement to hatred offences. All the guidance will be available before the offence comes into force. However, I am quite persuaded by the argument put by the hon. Member for Cambridge, and I would like to reflect on it. Therefore, although I ask him to withdraw new clause 11, I invite him to take up the opportunity of meeting the Director of Public Prosecutions to consider whether it would be appropriate to make the guidance statutory.

I fully understand the motivation behind new clause 37, but I believe that it is unnecessary. Allegations about offences, and specifically about child sex offences, are a very easy and damaging way of stirring up hatred on the grounds of sexual orientation. Such allegations are damaging and distasteful and should be challenged, but we believe that it is not necessary to mention them specifically in the offence. In many instances, allegations linking sexual orientation with child sex offences will be threatening as well as distasteful, and will be caught by the offence. However, when the circumstances mean an allegation is not threatening, it will not be caught, and we think that is right.

Mr. Gerald Howarth:
I believe the Minister said in response to the Liberals that she will consult the Attorney-General on prosecuting guidelines. May I invite her to extend her consultation to those of us who feel extremely concerned about these issues, because we fear that the guidance will be as misleading as the CPS guidance to which I referred?

24 Mar 2009 : Column 202

5.30 pm

Bridget Prentice:
I have invited the hon. Member for Cambridge, who moved the new clause, to discuss that with the DPP, and I think that that is the appropriate thing for him to do. I do not think that it is necessarily appropriate to extend that to the whole House, but hon. Members can make their views known to the Attorney-General and the DPP as they think fit.

Dr. Evan Harris:
On new clause 37, does the Minister agree with us that whenever any linkage of homosexuality with paedophilia is intended to stir up hate it should, by definition, be considered threatening? Is she saying that even if such a linkage is made in the context of a deliberate attempt to incite hatred, rather than, for example, academic discourse, it would not be, in some circumstances, considered threatening and therefore would not be an offence? That is a matter of concern to us, so will she agree to reflect on it a little further?

Bridget Prentice:
I have to reject the hon. Gentlemans argument, because the word threatening, in this context, has to have its normal English meaning. We do not think that it is right to stretch that to include words or behaviour that it would not naturally cover, because it would muddy the waters. I am concerned that if we were to go down the road he suggests in new clause 37, those who make such allegations could shift their grounds to similar but equally damaging allegationsfor example, saying that gay people are responsible for HIV/AIDS. Although I understand the concerns that he is trying to address, I do not think that the new clause is the way to address them. I therefore hope that he will not press it to a Division, but will join us in the Lobby to reject amendment 1.

Miss Widdecombe:
I support amendment 1, but irrespective of which side of the argument one stands on today, it is regrettable, given the widespread concern about free speech in this country, that we are restricted to one hour in which to discuss the issues. If the Government had respect for the publics worries about free speech, they would have allowed rather longer.

We have heard a great deal, especially from those on the Liberal Democrat Benches, about how arrests, persecutions and inquiries were somehow nothing to do with the law, but were all to do with a misguided application, as though some PC Plod somewhere had decided to knock on the door

David Howarth rose

Miss Widdecombe:
I remind the hon. Gentleman of his reply to me.

In the Lancashire case, a couple were questioned by the police for an hour and 20 minutes. They had asked the local council whether they could distribute Christian literature alongside the councils literature on civil partnerships. There was an outcry, and Lancashire police stood their ground and said it was a proper intervention. The local council also stood its ground and said that it was a proper intervention under the lawnot under this Billthat it was then invoking. It was only when the couple suedor commenced suing; there was a settlementthat the police and local council decided that they had got it wrong. When that is the attitude of 24 Mar 2009 : Column 203
senior police and authorities, who are responsible for implementing the law that this place passes, we sometimes need very simple, straightforward clarifications that almost hit them on the nose, so that they actually understand what Parliament intends.

Dr. Evan Harris:
I agree with the hon. Lady and I would point out that taking the word insulting out of section 5 of the Public Order Act 1986, which covers causing harassment, distress and alarm through words or behaviour that are threatening, abusive or insulting, will achieve exactly what she wants. That is the change in the law that she rightly requests, because that is the provision under which the couple were wrongly pursued. It is not a surprise that the police would not give way, because the statute includes the word insulting. Does she agree that that is the way forward?

Miss Widdecombe:
I do not agree that that is the only way forward, because that addresses one law. Today, we have to address this law. The chief constable of North Wales, who can be a little zealous sometimesthat is why I am pleased that he is now in charge of huntingdefended six police officers arresting a man who had used a rather vulgar term for a lesbian to a third party. That is the state that we live in. We do not live in a moderate state that is restrained in its application of the law.

Out there in the country, in case Ministers are completely oblivious to it, there is a swelling unease about freedom of speech. Certain sections of the community believe that they would have to overcome a higher threshold before they would be protected from the sorts of allegations that are frequently made. The religious hatred and sexual orientation laws, and myriad other laws that seek to bring equality, have an oppressive heart. The face may be liberalism, but the heart is oppression. We need amendment 1 to ensure that the Bill contains the clearest possible explanationhammered home and spelled outso that there can be no doubt in the mind of anyone responsible for interpreting and implementing the law that the ordinary exercise of free speech is not caught by it.

We have free speech in this House that is not commonly enjoyed by many of the people on whom we pass laws. We enjoy a protected position, but people out thereteachers in faith schools, priests in pulpits, ordinary people expressing a particular opinionnow feel afraid to speak freely. There can be no possible objection to Parliament stressing that free speech is not at risk from this Bill. That is all that amendment 1 seeks to do and I commend it to the House.

Mr. Tom Harris:
I am delighted that so many colleagues have taken their places to listen to my short contribution. I am in a very unusual position. I am speaking against the Government for the first time since I became a Member in 2001 and face the prospect of voting against the Government on a three-line Whip, which I have never done before.

In a sermon in 2006, the Roman Catholic archbishop, Mario Conti, restated the Churchs long-held policy that homosexual relationships should not be given the same value as married, heterosexual relationships. As it 24 Mar 2009 : Column 204
happens, I do not agree with the archbishop. I am glad that my hon. Friend the Deputy Leader of the House of Commons is in his place. He will remember a conversation that we had a couple of years ago, in which he said, Tom, the only remotely left-wing thing about you is that you quite like poofs.

I have a long history of support for gay rights in this House. It is a matter of some regret that I have to speak against what the Government are trying to do tonight by removing the so-called Waddington amendment. If one speaks to almost any constituent one will realise that there is clearly public concern that a person who voices an opinion that is not considered to be politically correct could end up being questioned by police.

If they are not avidly tuned into the BBC Parliament channel right now, police officers throughout the country will take a keen interest in this debate, the outcome of which will have a major impact on their already massive work loads. If the Government get their way, officers will have every right to roll their eyes heavenward as they resign themselves to having to deal with an increased volume of correspondence from people who interpret every harsh word uttered as a broken bottle thrown.

When Archbishop Conti delivered his speech, a formal complaint was made against him by Patrick Harvie, a Green Member of the Scottish Parliament, who said that the archbishops restatement of Church policy was an incitement to homophobic hatred. I assume that Glasgows chief constable, being a sensible chap, can put that complaint into the bin, but we are making sure that police officers will have to deal with more vexatious actions simply because we are eliminating a provision that any member of the public would consider to be eminent common sense.

David Howarth:
Given the Governments generous offer, I beg to ask leave to withdraw new clause 11.

Clause, by leave, withdrawn.

5.41 pm

O ne hour having elapsed since the commencement of proceedings on consideration, the proceedings were interrupted (Programme Order, 23 March).

The Deputy Speaker put forthwith the Questio n necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).